McGraw v. Railroad Co.

Connor, J. There are a number of exceptions in the record to tbe instructions given by tbe Court and to tbe refusal to give special instructions, all of which are duly assigned as error. We are of tbe opinion that tbe first exception should be sustained. His Honor charged tbe jury, as a conclusion of law, that upon all tbe evidence tbe plaintiff was a passenger on tbe defendant’s train, meaning of course that be was such for tbe purpose of maintaining this action. If be was correct in this, tbe jury must, as a conclusion of law, have answered tbe second issue “Yes” — thus eliminating tbe question whether tbe conductor used excessive force from consideration, except upon tbe character and amount of damages which should be awarded tbe plaintiff. Eor tbe purpose of disposing of this first exception, we must assume that tbe conductor’s account of tbe transaction is correct. Tbe instruction is necessarily based upon that assumption. When tbe relation of passenger is established by entry upon defendant’s premises for tbe purpose of purchasing a ticket or taking passage on tbe defendant’s train, or entry into tbe cars for such purpose, tbe relative rights and duties of tbe passenger and carrier are fixed and well settled. There is a presumption that a person who enters a passenger car, nothing appearing in bis conduct to tbe contrary, is or intends to become a passenger. Railroad v. Brooks, 57 Pa. St., 339, 98 Am. Dec., 229. No such presumption arises when tbe entry is upon a baggage or mail car or upon any other portion of tbe train not assigned to passengers. Elliott on Railroads, section 1578, says: “Tbe presumption may of course be rebutted, and it will not ordinarily arise when tbe person occupies a position on tbe train which passengers have [267] no right to occupy, or goes upon a train on which passengers are not carried.” The general rule is that a person can take passage on such trains only, and only in such places, as the rules of the company provide that passengers shall be carried, and one who does not conform to such rules is ordinarily to be regarded as an intruder or trespasser, and an intruder or trespasser cannot impose upon a railroad company the high duty which a carrier owes to its passengers.” Ibid., section 1581. It was the duty of the plaintiff, when found upon the platform of the baggage car, to promptly inform the conductor that he had a ticket, so that he could be given an opportunity to go into the car provided for passengers. Tie says that he did so. The conductor says that he did not do so, that he said nothing about having a ticket, and that he (conductor) saw no ticket. The truth of the matter should have been ascertained by the jury. If the plaintiff’s version of the transaction is true, he is entitled to maintain his action. If the conductor’s version is correct, he is not entitled as a passenger to recover. If the jury should find the conductor’s version to be true, the plaintiff could recover damages for his ejection only by showing that the conductor used excessive force. Railroad v. Herring, 47 N. J. Law, 137; 54 Am. Rep., 123; Fetter on Carriers, 359. His right to recover punitive damages, if he shows himself entitled to compensatory damages, depends upon well-settled principles. Holmes v. Railroad, 94 N. C., 319. There must be a New Trial. Douglas, J., concurs in result only.